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Case TitleLONG et al v. IMMIGRATION AND CUSTOMS ENFORCEMENT
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv01097
Date Filed2017-06-08
Date ClosedOpen
JudgeJudge Amit P. Mehta
PlaintiffSUSAN B. LONG
PlaintiffDAVID BURNHAM
Case DescriptionSusan Long and David Burnham, co-directors of the Transactional Records Access Clearinghouse, submitted monthly FOIA requests to U.S. Immigration and Customs Enforcement for anonymous case-by-case information about individuals deported by ICE as a result of its Secure Communities or successor programs. In its most recent response to TRAC's monthly request, the agency failed to provide a number of data fields that it had disclosed previously. TRAC filed an administrative appeal of the agency's response. ICE responded to the appeal by telling TRAC that the agency database did not contain that information and it was not required to provide it. TRAC then filed suit.
Complaint issues: Litigation - Attorney's fees

DefendantIMMIGRATION AND CUSTOMS ENFORCEMENT
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [20]
FOIA Project Annotation: In two separate cases brought by TRAC against U.S. Immigration and Customs Enforcement to require the agency to explain why it stopped providing certain statistical data on who was detained and/or deported as a result of various programs, Judge Amit Mehta of the U.S. District Court for the District of Columbia and Judge Brenda Sannes of the U.S. District Court for the Northern District of New York have both rejected the agency's claims that gaps in the data that had previously been released in response to TRAC's regular requests were caused because TRAC was asking the agency to create records in response to various questions. Although ICE had previously responded to TRAC's monthly requests by providing computer extracts furnished as Excel spreadsheets derived from its Enforcement Integrated Database, starting in January 2017, the agency provided fewer data points, claiming the information was not contained in the EID. TRAC filed several suits to force the agency to provide the missing data or justify its change in policy. Mehta pointed out that "ICE concedes that 'a search for "data points" or "points of data" means a search of records.' Nevertheless, ICE asserts that in this case, Plaintiffs' requests command the agency to go above and beyond such requirements by essentially asking the agency 'to create new methods of organizing archival data or. . . answer. . .specific interrogatories.' And although ICE previously provided data in response to virtually identical requests to those at issue here, ICE contends that it should not be penalized for going above and beyond what the FOIA requires in the past." The agency provided an affidavit from Marla Jones, Unit Chief of the Statistical Tracking Unit. Jones explained that TRAC's questions required the agency to make assumptions that required the creation of records not already in the database. Mehta found Jones' affidavit failed to provide enough information for him to rule. He noted that "in a case such as this one, where ICE previously has provided fields and data elements in response to virtually identical requests, individualized explanations as to why FOIA does not obligate ICE to produce the same fields and data elements are essential. Such individualized explanations would help the court understand why the agency now interprets certain numbered requests to ask a question, as opposed to seeking fields and data elements in the EID that indicate the existence or nonexistence of some event or state of facts. They also would shed light on the nature of the 'additional analysis' required to respond to each request " something the court cannot discern from either the conclusory statements or Jones's explanation as to other requests pertaining to different types of data." He added that "even to the extent Jones offers a specific explanation as to a particular request, her explanations lack sufficient detail to allow the court to conclude that ICE has satisfied its burden of demonstrating that the data requested is not subject to disclosure under FOIA. In other words, not only are Jones's explanations too generic to apply across the board to all requests, but they also fail to adequately support the agency's position that responding to even those requests specifically referenced by Jones requires the creation of a new record." Mehta pointed out Jones' explanations often made no sense in relation to TRAC's actual requests. Jones had complained that TRAC's request for whether a detainer exists required the agency to assume that only one detainer existed. But Mehta observed that "rather, their request pertains to the date of issuance of any detainer issued prior to the removal of a person pursuant to the Secure Communities Program " not whether there is a causal connection between the detainer, if one exists, and the removal." Indicating that he could not rule in favor of either party on the current record, Mehta noted that "while an agency can change its mind [on whether or not to make discretionary disclosures], the court is not convinced that the reasons offered by ICE in this case justify its change of heart."
Issues: Litigation - Jurisdiction - Failure to State a Claim
User-contributed Documents
 Declaration of Marla Jones, ICE ERO
Second Declaration of Marla Jones, ICE ERO
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-06-081COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090-4983046) filed by DAVID BURNHAM, SUSAN B. LONG. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Sherman, Sean) (Entered: 06/08/2017)
2017-06-08Case Assigned to Judge Amit P. Mehta. (md) (Entered: 06/09/2017)
2017-06-092SUMMONS (3) Issued Electronically as to IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 06/09/2017)
2017-06-123RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/12/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/12/2017. (Sherman, Sean) (Entered: 06/12/2017)
2017-06-234NOTICE of Appearance by William Mark Nebeker on behalf of IMMIGRATION AND CUSTOMS ENFORCEMENT (Nebeker, William) (Entered: 06/23/2017)
2017-07-125Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 07/12/2017)
2017-07-13MINUTE ORDER granting Defendant's 5 Unopposed Motion for Extension of Time to Answer. Defendant shall now file its responsive pleading on or before July 27, 2017. Signed by Judge Amit P. Mehta on 07/13/2017. (lcapm1) (Entered: 07/13/2017)
2017-07-13Set/Reset Deadlines/Hearings: Responsive pleading due by 7/27/2017. (cdw) (Entered: 07/13/2017)
2017-07-276ANSWER to Complaint by IMMIGRATION AND CUSTOMS ENFORCEMENT.(Nebeker, William) (Entered: 07/27/2017)
2017-07-287ORDER: Both a Complaint and an Answer are now before the court in this FOIA case. It is hereby ordered that the parties shall meet and confer and file a Joint Status Report on or before August 18, 2017. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 07/28/2017. (lcapm1) (Entered: 07/28/2017)
2017-07-28Set/Reset Deadlines/Hearings: Joint Status Report due by 8/18/2017. (cdw) (Entered: 07/28/2017)
2017-08-178Joint STATUS REPORT by IMMIGRATION AND CUSTOMS ENFORCEMENT. (Nebeker, William) (Entered: 08/17/2017)
2017-08-219ORDER entering the briefing schedule proposed in the parties' 8 Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Defendant's Motion for Summary Judgment is due on or before October 20, 2017; (2) Plaintiffs' Opposition to Defendant's Motion and Cross-Motion for Summary Judgment is due on or before November 24, 2017; (3) Defendant's Reply in Support of Summary Judgment and Opposition to Plaintiffs' Cross-Motion for Summary Judgment is due on or before December 22, 2017; and (4) Plaintiff's Reply in Support of Cross-Motion for Summary Judgment is due on or before January 19, 2018. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 08/21/2017. (lcapm1) (Entered: 08/21/2017)
2017-08-21Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 10/20/2017. Response to Motion for Summary Judgment due by 11/21/2017. Reply to Motion for Summary Judgment due by 12/22/2017. Plaintiffs' Cross Motion due by 11/24/2017. Response to Cross Motion due by 12/22/2017. Reply to Cross Motion due by 1/19/2018. (zcdw) (Entered: 08/22/2017)
2017-10-1710Unopposed MOTION for Extension of Time to File Dispositive Motion by IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/17/2017)
2017-10-18MINUTE ORDER granting Defendant's 10 Unopposed Motion for Extension of Time and revising the schedule in this matter as follows: (1) Defendant's Motion for Summary Judgment is due on or before November 3, 2017; (2) Plaintiffs' Opposition to Defendant's Motion and Cross-Motion for Summary Judgment is due on or before December 8, 2017; (3) Defendant's Reply in Support of Summary Judgment and Opposition to Plaintiffs' Cross-Motion for Summary Judgment is due on or before January 12, 2018; and (4) Plaintiffs' Reply in Support of Cross-Motion for Summary Judgment is due on or before February 9, 2018. Signed by Judge Amit P. Mehta on 10/18/2017. (lcapm1) (Entered: 10/18/2017)
2017-11-0311MOTION for Summary Judgment by IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Declaration Pavlik-Keenan, # 2 Declaration Jones, # 3 Text of Proposed Order)(Nebeker, William) (Entered: 11/03/2017)
2017-12-0812MOTION for Summary Judgment by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Declaration of Susan B. Long and Accompanying Exhibits, # 2 Text of Proposed Order)(Sherman, Sean) (Entered: 12/08/2017)
2017-12-0813Memorandum in opposition to re 11 MOTION for Summary Judgment filed by DAVID BURNHAM, SUSAN B. LONG. (Attachments: # 1 Declaration of Susan B. Long and Accompanying Exhibits, # 2 Text of Proposed Order)(Sherman, Sean) (Entered: 12/08/2017)
2018-01-1114Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment , 11 MOTION for Summary Judgment by IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 01/11/2018)
2018-01-11MINUTE ORDER granting Defendant's 14 Unopposed Motion for Extension of Time to File Response/Reply. Defendant's Reply and Opposition to Plaintiffs' Cross-Motion for Summary Judgment shall now be due on or before January 26, 2018, and Plaintiffs' Reply in Support of their Cross-Motion shall be due on or before February 23, 2018. Signed by Judge Amit P. Mehta on 01/11/2018. (lcapm1) (Entered: 01/11/2018)
2018-01-11Set/Reset Deadlines/Hearings: Reply to Motion for Summary Judgment due by 1/26/2018. Response to Cross Motions due by 1/26/2018. Reply to Cross Motions due by 2/23/2018. (zcdw) (Entered: 01/15/2018)
2018-01-2415Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment , 11 MOTION for Summary Judgment by IMMIGRATION AND CUSTOMS ENFORCEMENT (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 01/24/2018)
2018-01-26MINUTE ORDER granting Defendant's 15 Unopposed Motion for Extension of Time to File Response/Reply. Defendant's Reply and Opposition to Plaintiffs' Cross-Motion for Summary Judgment shall now be due on or before February 9, 2018, and Plaintiffs' Reply shall be due on or before March 9, 2018. Signed by Judge Amit P. Mehta on 01/26/2018. (lcapm1) (Entered: 01/26/2018)
2018-01-26Set/Reset Deadlines/Hearings: Reply to Motion for Summary Judgment due by 2/9/2018. Response to Cross Motion due by 2/9/2018. Reply to Cross Motion due by 3/9/2018. (zcdw) (Entered: 01/27/2018)
2018-02-0916Memorandum in opposition to re 12 MOTION for Summary Judgment filed by IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Declaration Second Jones Decl., # 2 Text of Proposed Order)(Nebeker, William) (Entered: 02/09/2018)
2018-02-0917REPLY to opposition to motion re 11 MOTION for Summary Judgment (same as ECF No. 16) filed by IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachments: # 1 Declaration Second Jones Decl., # 2 Text of Proposed Order)(Nebeker, William) (Entered: 02/09/2018)
2018-02-2318MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Summary Judgment by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Text of Proposed Order)(Sherman, Sean) (Entered: 02/23/2018)
2018-02-23MINUTE ORDER granting Plaintiffs' 18 Unopposed Motion for Extension of Time to File Reply. Plaintiffs' Reply shall now be due on or before March 23, 2018. Signed by Judge Amit P. Mehta on 02/23/2018. (lcapm1) (Entered: 02/23/2018)
2018-03-2319REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by DAVID BURNHAM, SUSAN B. LONG. (Attachments: # 1 Declaration of Susan B. Long (Second) and Accompanying Exhibits)(Sherman, Sean) (Entered: 03/23/2018)
2018-09-2820MEMORANDUM OPINION AND ORDER denying Defendant's 11 Motion for Summary Judgment and Plaintiffs' 12 Cross-Motion for Summary Judgment without prejudice. The parties shall appear for a Status Conference on October 10, 2018, at 10:00 a.m. in Courtroom 10 to discuss further proceedings in this matter. See the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 09/28/2018. (lcapm1) (Entered: 09/28/2018)
2018-10-01Set/Reset Hearings: Status Conference rescheduled to 10/10/2018 at 11:00 AM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 10/01/2018)
2018-10-0821MOTION for Order Governing Further Proceedings by DAVID BURNHAM, SUSAN B. LONG (Attachments: # 1 Text of Proposed Order)(Sherman, Sean) (Entered: 10/08/2018)
2018-10-10Minute Entry for proceedings held before Judge Amit P. Mehta: Status Conference held on 10/10/2018. Government's Supplemental Declaration due by 12/14/2018. Joint Status Report due by 11/7/2018. (Court Reporter: Elizabeth Saint-Loth) (zjd) (Entered: 10/10/2018)
2018-10-10MINUTE ORDER denying Plaintiffs' 21 Motion for Order Governing Further Proceedings. Pursuant to the Status Conference held on this date, the parties shall file a Joint Status Report, on or before November 7, 2018, that updates the court on their progress toward resolving this matter. Defendant's supplemental declaration shall be due on or before December 14, 2018. Signed by Judge Amit P. Mehta on 10/10/2018. (lcapm1) (Entered: 10/10/2018)
2018-10-2422TRANSCRIPT OF PROCEEDINGS before Judge Amit P. Mehta held on 10-10-2018; Page Numbers: 1 - 30. Date of Issuance: 10-24-2018. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202-354-3242, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter reference d above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 11/14/2018. Redacted Transcript Deadline set for 11/24/2018. Release of Transcript Restriction set for 1/22/2019.(Saint-Loth, Elizabeth) (Entered: 10/24/2018)
2018-11-0723Joint STATUS REPORT by DAVID BURNHAM, SUSAN B. LONG. (Sherman, Sean) (Entered: 11/07/2018)
2018-11-08MINUTE ORDER: In light of 23 the parties' Joint Status Report, the parties shall submit a subsequent Joint Status Report on or before November 30, 2018, advising the court of progress in the parties' efforts to settle. Signed by Judge Amit P. Mehta on 11/08/2018. (lcapm1) (Entered: 11/08/2018)
2018-11-08Set/Reset Deadlines: Joint Status Report due by 11/30/2018. (zjd) (Entered: 11/08/2018)
2018-11-1524NOTICE of Appearance by Scott Lawrence Nelson on behalf of All Plaintiffs (Nelson, Scott) (Entered: 11/15/2018)
2018-11-20NOTICE OF ERROR re 24 Notice of Appearance; emailed to snelson@citizen.org, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Attorney's membership with the bar of this court has lapsed; Please visit our website for renewal instructions: http://www.dcd.uscourts.gov/attorney-admissions-and-renewal-information (znmw, ) (Entered: 11/20/2018)
2018-11-2025NOTICE of Appearance by Scott Lawrence Nelson on behalf of All Plaintiffs (Nelson, Scott) (Entered: 11/20/2018)
2018-11-2626NOTICE of Appearance by Michael T. Kirkpatrick on behalf of All Plaintiffs (Kirkpatrick, Michael) (Entered: 11/26/2018)
2018-11-3027Joint STATUS REPORT by DAVID BURNHAM, SUSAN B. LONG. (Sherman, Sean) (Entered: 11/30/2018)
2018-11-3028NOTICE OF WITHDRAWAL OF APPEARANCE as to DAVID BURNHAM, SUSAN B. LONG. Attorney Sean M. Sherman terminated. (Sherman, Sean) (Entered: 11/30/2018)
2018-12-03MINUTE ORDER. The parties shall file an additional status report no later than January 4, 2019, updating the court as to their settlement efforts. The deadline to file Defendant's supplemental declaration on December 14, 2018, is hereby vacated and is reset to January 15, 2019. Signed by Judge Amit P. Mehta on 12/03/2018. (lcapm1) (Entered: 12/03/2018)
2018-12-03Set/Reset Deadlines: Joint Status Report due by 1/4/2019. Supplemental Declaration due by 1/15/2019. (zjd) (Entered: 12/03/2018)
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by FOIA Project Staff
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